Can You Copyright Fashion?

The laws governing intellectual property protection for clothing design, specifically copyright, vary significantly worldwide. In the United States, it is notoriously difficult to obtain copyright protection for functional apparel.

The Scope of Copyright Protection

Copyright law is designed to protect original works of authorship fixed in a tangible form of expression, typically covering creative works such as novels, poems, and paintings. When it comes to clothing and fashion, US law treats design features differently:

1. Functionality Rule: Copyright generally does not protect the functional aspects of a design. A basic collared shirt, or even a specific style of pants, is viewed as a useful, functional article. This is why many brands, like Polo or Lacoste, can all sell nearly identical collared shirts.
2. Creative Expression: For a clothing design to be copyrighted, the design must be separable from the garment's functional or utilitarian features and qualify as an original work of creative expression.

Trademark: The Real Protector of Brands

Most successful fashion and apparel companies protect their designs, not through copyright on the garment itself, but through trademark on branding elements. Trademark law protects elements that identify the source of a product, preventing consumer confusion.

Examples include:

1. Levi's: The distinct red tag on the outside of the back pocket is a federally protected trademark.
2. Lacoste: The iconic alligator logo.
3. Vineyard Vines: The signature whale logo.

Copyright protection for functional garments such as pants or shirts in the United States is very difficult to obtain, and clothing manufacturers should be counseled to rely on trademark protection for the brands connected to the article of clothing. It is prudent to contact an experienced trademark attorney if you have questions about intellectual property protection for fashion.

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